Pierre Riley, who overstayed his visa and was later convicted of felony drug distribution and firearm charges, sought protection under the Convention Against Torture, or CAT, arguing he would face torture if returned to Jamaica.
An immigration judge granted relief, but the Board of Immigration Appeals, or BIA, reversed that decision. Riley petitioned for judicial review four days after the BIA's order but well after the original removal order by the U.S. Department of Homeland Security.
Arguing on behalf of Riley, Keith Bradley of Squire Patton Boggs LLP told the justices that a 30-day statutory timeline for challenging deportation orders is not jurisdictional, meaning that it can be waived, and that the clock starts running only after all immigration proceedings have concluded.
The case could set a new standard for when immigrants facing deportation can seek judicial review after being denied protection under CAT. It is particularly consequential for noncitizens like Riley who are deportable because of their criminal records, but who may still face torture abroad.
"A sensible scheme of judicial review would provide a right to review on a petition properly filed, particularly on matters of life and death," Bradley told the justices. "But it also would not have the courts routinely intrude while the agency is still doing its work."
Ephraim McDowell, who argued on behalf of the federal government in support of Riley's position, said he agreed that the 30-day filing deadline is nonjurisdictional, and that Riley asked for judicial review in a timely manner.
"A CAT order becomes final at the same time as a removal order so that challenges to both orders can be raised together in the same petition for review," McDowell said. "It is unlikely that Congress would have precluded review of many claims indirectly by way of a generic 30-day filing deadline."
The case, which could have broad implications for noncitizens facing deportation orders — many of them without legal representation — hinges on matters of jurisdiction and timing. Its questions are also at the center of a double circuit split.
A provision in the Immigration and Nationality Act says that a petition to review a deportation order "must be filed not later than 30 days after the date of the final order of removal."
Riley, a Jamaican national, entered the United States in 1995 on a tourist visa. In 2006, he was convicted of firearm charges and conspiracy to distribute 1,000 kilograms or more of marijuana. He was sentenced to 25 years in federal prison.
In January 2021, after Riley was released early through compassionate release, the immigration authorities took custody of him, and the Department of Homeland Security later issued a final deportation order, explaining that Riley was removable because he had been convicted of an aggravated felony.
But Riley fought his deportation on the basis of fear of persecution and torture if he returned to Jamaica. While Riley was unable to convince a DHS officer of those risks, an immigration judge thought they had some merits and referred his case to the immigration court.
Although Riley applied for asylum and sought withholding of removal — a form of protection that prohibits the U.S. government from deporting someone to a country where their life or freedom would be threatened — he later acknowledged that, because of his prior convictions, he was only eligible to seek a temporary relief from deportation under CAT.
An immigration judge granted Riley the temporary reprieve, known as deferral of removal, in July 2021. On appeal, however, the BIA reversed that decision on May 31, 2022, reinstating the removal order.
Riley filed his petition for judicial review on June 3, 2022, within 30 days of the BIA's order, but 493 days after the DHS' removal order.
Both parties urged the U.S. Court of Appeals for Fourth Circuit to decide the merits of the case, but the court dismissed the petition for lack of jurisdiction, interpreting the INA's text literally to mean that the 30-day clock began running when the final order of removal was issued.
Riley petitioned the Supreme Court last May, asking it to reverse the Fourth Circuit's ruling. The U.S. government later joined the case as an amicus to support Riley's argument.
Federal appeals courts disagree whether the deadline indicated in the INA's provision in question — Section 1252(b)(1) of Title 8 of the U.S. Code — is jurisdictional. The Fourth, Seventh, and Eleventh circuits have held that the 30-day deadline is absolute. The Fifth and Ninth circuits, meanwhile, said it is not.
The sister courts are also split as to when the 30-day deadline begins in withholding-only cases like Riley's.
The Supreme Court then appointed Stephen Hammer of Gibson Dunn & Crutcher LLP as an amicus to defend the Fourth Circuit's decision at the oral arguments.
On Monday, Hammer argued that the INA's statutory deadline is jurisdictional, relying heavily on Stone v. INS
, a 1995 Supreme Court decision that endorsed a strict interpretation of judicial review deadlines in immigration cases."The Fourth Circuit correctly held that Mr. Riley's failure to comply with that deadline meant it was jurisdictionally barred from reviewing his petition," Hammer told the justices. "The Fourth Circuit also correctly held that Mr. Riley's petition was untimely. The only order of removal in this case is the final administrative removal order."
Overall, the justices appeared broadly skeptical of a strict interpretation of the filing deadline.
"This statute is as clear as you can be," Justice Sonia Sotomayor said. "Some provisions say there's no jurisdiction. ... This one doesn't."
Bradley argued that the high court has often understood a time bar to be jurisdictional only if Congress had clearly indicated so in the text of its laws. His arguments invited questions from Chief Justice John G. Roberts Jr., which at times turned humorous.
"Is it really a magic words case — that statute has to say, 'and this is jurisdictional'?" Justice Roberts asked. Justice Samuel Alito asked a similar question later on.
Bradley responded that the INA contains "textual clues" that indicate that the 30-day deadline is not absolute.
"There are many, many clues that this particular deadline is not jurisdictional," he said.
Bradley said Riley and the government largely shared the same main arguments, including that an order of removal issued by immigration authorities doesn't become final until the immigration appeal process is concluded.
Justice Neil Gorsuch was interested in finding possible areas of disagreement between Riley's and the government's positions.
"I can't think of any," Bradley said.
McDowell emphasized what he saw as possible real-world consequences of adopting the Fourth Circuit's ruling. One is that, if that view prevails, immigrants will feel compelled to file preemptive petitions for judicial review in federal court even as their immigration proceedings are still playing out, to avoid missing the 30-day deadline.
"It creates a trap for the unwary because many people in this system are unrepresented and won't know that they have to file this sort of counterintuitive protective petition," McDowell said, adding that even when filed, the petitions will likely create a burden for the courts and for the government. "It really is just a waste of resources in many cases."
Riley is represented by Keith Bradley of Squire Patton Boggs LLP.
The U.S. government is represented by Ephraim McDowell of the Office of the U.S. Solicitor General.
Stephen Hammer of Gibson Dunn & Crutcher LLP argued on behalf of the Fourth Circuit's ruling.
The case is Riley v. Bondi, case number 23-1270, in the Supreme Court of the United States.
--Editing by Marygrace Anderson.
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